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January 18, 2008

Court Rejects Motion to Renew Arguments After Judge's Recusal in Atlantic Yards Case

NY Law Journal reporter Mark Hamblett recaps recent legal developments, including the Second Circuit Court of Appeals decision to NOT rehear oral arguments after one justice on the three-member panel recused himself.

Opponents of Bruce Ratner's $4 billion Atlantic Yards project in Brooklyn are running out of options following a federal appeals court's refusal to hold additional arguments on their challenge to New York's eminent domain law.

Opponents also failed to convince a state court judge last week that the environmental review of the project had been inadequate.

Lawyers for the coalition Develop Don't Destroy Brooklyn had asked for new arguments after a circuit panel member recused himself in the wake of oral arguments in October to avoid the appearance of impropriety.

Eastern District Judge Edward Korman, who was sitting by designation at the U.S. Court of Appeals for the Second Circuit in October, told lawyers before oral argument that he recalled receiving several years ago a solicitation from Atlantic Yards proponents and that he had mailed back a prepaid postcard indicating that he supported the project.

No one at the Oct. 9, 2007, oral argument in Goldstein v. Pataki asked for the judge's recusal. But a letter mailed the next day to the circuit by plaintiffs' lawyer Matthew Brinckerhoff said that the equation may have changed because those who returned the solicitation may have received a free tote bag and a voucher for two tickets to a New Jersey Nets game.

Judge Korman recused himself last month, and his seat on the panel that included Judges Robert Katzmann and Debra Ann Livingston was taken by Judge Dennis Jacobs.

On Tuesday, that panel denied Mr. Brinckerhoff's motion to renew the argument in a one-page order. The new panel will now decide the appeal without additional argument.

The rejection comes on the heels of a major setback for opponents on Jan. 10, when Manhattan Supreme Court Justice Joan A. Madden (See Profile) [subscription required; free trial available] found that objections to the handling of the review and approval process were without merit.

And opponents suffered another loss last week when the Appellate Division, Second Department, denied a motion by individual residents to take an appeal of a Second Department ruling to the New York Court of Appeals.

Their only chance now is to persuade the state Court of Appeals to take the appeal from the decision in Anderson v. New York State Urban Development Corp., 2007-00372.

The appeal in Goldstein v. Pataki, 07-2537-cv, was brought after Eastern District Judge Nicholas Garaufis rejected challenges to the project, including an assault on New York's eminent domain law (NYLJ, June 7, 2007) [subscription required; free trial available].

At the circuit oral arguments, after telling the assembled that he had indicated his support for Atlantic Yards, Judge Korman said he was certain he could remain unbiased but that if any of the attorneys on either side wished him to recuse himself, they could do so anonymously before the case was called.

No one objected and oral argument proceeded as scheduled.

Mr. Brinckerhoff, of Emery Celli Brinckerhoff & Abady, followed up with his Oct. 10 letter saying it had been brought to his clients' attention that "Forest City Ratner and/or its agents apparently sent approximately 350,000 copies of the attached mailer" to Brooklyn residents in May 2004.

"The mailer is striking for a number of reasons, most notably because it solicited supporters to return a postage-prepaid card pledging that 'YES! I SUPPORT THE ATLANTIC YARDS and the jobs, housing and open space it will create," Mr. Brinckerhoff wrote. "According to published reports, approximately three percent of the cards were returned and every person who returned the card was sent both an Atlantic Yards tote bag and a voucher redeemable for two free tickets to a New Jersey Nets game."

A centerpiece of the project, which also includes 16 high-rise residential and office buildings, is an 18,000 capacity sports arena that will be the new home of the New Jersey Nets.

The attorney wrote that he did not know whether it was the same solicitation Judge Korman was referring to, "although its nature and timing appear to be consistent with Judge Korman's recollection. If this is the flier at issue, we are concerned about the appearance of impropriety that will accrue if Judge Korman were to remain on the Panel having pledged his support for the project and received material gifts in return for that pledge."

Mr. Brinckerhoff did not request recusal, saying only he wanted the panel to "be aware of this issue."

The parties were informed in late December that Judge Korman recused himself from the case and Mr. Brinckerhoff responded with a motion on Jan. 10 seeking renewed argument.

Review Challenged

Justice Madden's decision In the Matter of Develop Don't Destroy (Brooklyn) v. Urban Development Corp., 104597/2007 [PDF], involved a combined Article 78 proceeding and declaratory judgment action on the 22-acre site where Mr. Ratner's company, Forest City Ratner, wants to redevelop the Atlantic Terminal area in the Prospect Heights neighborhood.

The plaintiffs claimed they would be "harmed by the substantial adverse environmental impacts of a project of such enormous scale," and claimed the project violated the substantive and procedural requirements of the New York State Environmental Quality Review Act (SEQRA).

They argued that the resolution approving the project by the Public Authorities Control Board was governed by SEQRA and required specific findings under the act.

The Metropolitan Transportation Authority, they claimed, never adopted an SEQRA findings statement and never took a "hard look" at the project's environmental impact.

The plaintiffs also claimed the Urban Development Corp., which does business as the Empire State Development Corp., violated the Urban Development Corporation Act when it did not consult with the community, failed to provide a 30-day public comment period, designated the sports arena as a "civic project" and "blighting" parts of the site and designating it a "land use improvement project."

But citing the "considerable latitude" given agencies to assess environmental effects under SEQRA and noting that she was not permitted to "second guess the agency or substitute its judgment for that of the agency," Justice Madden found that the "determinations approving the project were neither arbitrary, capricious nor an abuse of discretion, and that respondents violated neither the procedural nor substantive requirements of SEQRA or the [Urban Development Corporation Act]."

Justice Madden's decision will be published on Wednesday.

The next step for opponents is to appeal Justice Madden's decision to the Appellate Division, First Department.

Posted by lumi at January 18, 2008 6:15 AM